NCR CORPORATION
MASTER AGREEMENT
__10180389____
Customer Number
____Ipswich Savings Bank__
Your Business Name ("you")
_____23 Market Street____
Street Address
________Ipswich, MA 10938_____
City State Zip Code
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Effective Date
CONTENTS
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1 - Definitions 8 - Your Obligations
2 - Orders, Addenda, and Contract Formation 9 - Product Evaluation
3 - Delivery and Installation 10 - Defense of Infringement
Claims
4 - Prices, Invoice, Payment, Taxes, and Title 11 - NCR's Liability
5 - Services 12 - Dispute Resolution
6 - License to Use Software and Deliverables 13 - Miscellaneous Terms
7 - Warranties
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1.0 DEFINITIONS
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1.1 "Agreement" means this Master Agreement.
1.2 "Addendum" is defined in Section 2.1.
1.3 "Contract" is defined in Section 2.3.
1.4 "Deliverables" is defined in Section 5.3.
1.5 "Equipment" means hardware and associated peripherals and features that
you acquire from NCR.
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1.6 "NCR Product Specifications" means NCR's official published specifications
for Products when you acquire them (which NCR will provide to you upon request),
and the documentation which NCR includes with Products delivered to you.
1.7 "NCR" means NCR Corporation.
1.8 "Policies" is defined in Section 2.2.
1.9 "Products" means Equipment, Software, Services, Deliverables,
and Supplies.
1.10 "Services" means those services that you acquire from NCR,
including those described in Section 5.0.
1.11 "Software" means computer programs in any form that you acquire
from NCR, but does not include diagnostic software as set out in
Section 6.3
1.12 "Supplies" means consumable items that you acquire from NCR.
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2.0 ORDERS, ADDENDA, AND CONTRACT FORMATION
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2.1 Scope; Addenda -- This Agreement establishes general terms and conditions
that apply to your acquisition (directly or through a leasing company) of
Products for your use. This Agreement does not authorize you to acquire Products
for resale or redistribution. In the future, you and NCR may agree to additional
terms covering a specific transaction. These terms will be contained in an
"Addendum" (which may be called an Addendum, "Statement of Work," or other
name).
2.2 NCR Policies -- This Agreement refers to a number of NCR policies
("Policies"). These are written policies that apply to NCR's customers
generally. They contain supplemental details of NCR's Products (for example,
details regarding Services and Software usage terms) and the way that NCR
interacts with its customers (for example, NCR's credit policies). These
Policies are incorporated into this Agreement as if they were written in it. NCR
will give you copies at your request. Changes to these Policies affect only
Contracts (defined in the next Section) which you and NCR subsequently create or
which renew; they do not change Contracts in place at the time of the change
during such Contracts' then-current terms.
2.3 Contracts -- This Agreement, standing alone, does not constitute an
obligation to buy or provide Products except and until you and NCR enter into an
Addendum, purchase order, or other document that contains terms and conditions,
such as Products being ordered, quantities, prices, delivery schedules, and
discounts, which apply only to a specific transaction. This Agreement and each
set of transaction-specific documentation will together constitute a "Contract"
between you and NCR that is a binding agreement separate from other Contracts.
NCR may accept written or oral orders. NCR accepts an order when it signs the
order or acknowledges it by performance or otherwise. If NCR accepts a written
order, the Contract includes the written order, this Agreement, the applicable
Policies, and any applicable Addenda.
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Unless NCR specifically agrees in writing, any preprinted language on your order
forms will not be a part of the Contract. If NCR accepts an oral order, the
Contract includes this Agreement, the applicable Policies, any applicable
Addenda, and the quantities, prices and product identifications confirmed on
NCR's invoice or acknowledgment. If there is a conflict within any Contract, the
following order of precedence will apply: first, the order, second, any
applicable Addenda, third, Policies, and finally, this Agreement.
2.4 Other Software License Terms; Other Company's Products -- If NCR provides
Software to you with a "shrink-wrap" or other license, those license terms are
included in the Contract rather than the license terms in this Agreement. If NCR
provides you with Equipment, Software, Deliverables, or Supplies that bear the
logo or copyright of another company with warranty and/or support terms from the
other company, the other company's terms are included in the Contract rather
than those in this Agreement, and, unless specifically agreed in writing, NCR
provides no warranty or support for these products. Upon your request, NCR will
give you a copy of the terms discussed in this Section 2.4 before you order
these products.
2.5 Invoiced Services -- In order to facilitate the continuation of Services at
the end of a warranty period or maintenance Service term, NCR may offer to
provide the Services by sending invoices covering them to the person you
designate. These invoices will clearly describe the Services and identify the
covered Products. If you want the Services, pay the invoices, or let NCR perform
the Services. The Contract will include this Agreement, the applicable Policies,
and the invoice terms. If you do not want the Services but your employees
mistakenly pay the invoice or accept the Services, notify NCR within three
months and NCR will cancel the Contract. If you have made any payments, NCR will
refund them, less charges for time and materials which NCR has already provided.
If you have not made any payments, NCR will charge you for time and materials
which NCR has already provided.
2.6 Electronic Data Interchange ("EDI") -- NCR may provide EDI options,
including electronic ordering, invoicing and payment. These options and NCR's
acceptance of your electronic document will be governed by an EDI Addendum to
this Agreement. If, however, you and NCR communicate electronically without
executing an EDI Addendum, an identification code contained in an electronic
document will be legally sufficient to verify the sender's identity and the
document's authenticity as a signed writing.
2.7 Changes -- Each Contract is the complete agreement between you and NCR
concerning transactions covered by it, and replaces any prior or contemporary
oral or written communications. If you request that NCR cancel or modify a
Contract (including changing delivery or installation dates or locations), you
and NCR will negotiate in good faith new schedules and/or sufficient
compensation to NCR for accommodating you. If no agreement is reached, the
Contract will continue unmodified, and if you refuse to perform further or
reject NCR's tender of Products, NCR may pursue its available remedies. No
change to this Agreement or a Contract will be effective unless it is in writing
and signed by authorized representatives of both you and NCR. Changes to
Contracts should be made on NCR's change control form.
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3.0 DELIVERY AND INSTALLATION
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3.1 Delivery -- NCR will use commercially reasonable efforts to perform its
obligations by dates included in a Contract. These dates are estimates only. NCR
will inform you of delays as far in advance as reasonably possible. If NCR's
performance is delayed (other than by a force majeure) for an unreasonable time,
you may cancel delivery without penalty.
3.2 Location and Risk of Loss -- NCR will deliver Products to the location that
you specify. If you select the shipping agent, the agent's receipt of the
Products constitutes delivery. Risk of loss passes to you upon delivery. You
agree to inspect Products when you receive them and to notify NCR promptly if
there is any visible damage.
3.3 Installation -- NCR will notify you if Products require a special physical
environment. You agree to provide that environment prior to installation. Upon
request, NCR will provide installation Services which may be separately
chargeable.
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4.0 PRICES, INVOICE, PAYMENT, TAXES, AND TITLE
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4.1 Prices -- Prices will be included in Contracts. If NCR announces a price
increase for a Product which you have ordered and the Contract specifies
delivery more than 120 days after the price increase becomes effective, NCR may
increase your price for the Product. Price increases for Services or Software
licensed for a periodic fee will only apply to subsequent billing periods.
4.2 Invoice and Payment -- Payment is due when you receive the invoice. NCR
reserves the right to charge late fees if it does not receive payment within 30
days from the date of the invoice, at the rate of one and one-half percent per
month, or up to the maximum allowed by law, whichever is less. If you do not pay
after NCR notifies you of your default, NCR also may suspend or terminate
applicable Services and repossess or reclaim the applicable Products without
waiving NCR's right to payment.
4.3 Taxes and Other Charges -- Product prices exclude delivery and installation
charges; charges associated with preparing your site; and all taxes (such as
sales, use, and ad valorem taxes, and assessments after audit) other than NCR's
net income or franchise taxes. If you qualify for tax exemptions, you must
provide NCR with appropriate exemption documentation.
4.4 Title -- Title of Equipment passes to you on delivery, except if NCR stores
purchased Equipment for you, title passes to you where and when storage occurs.
NCR retains a purchase money security interest in each Product that you purchase
until you pay for it. You appoint NCR as your agent to sign and file a financing
statement to perfect NCR's security interest. In addition to NCR's retention of
a purchase money security interest in Products, NCR may make its acceptance of
orders subject to the entering into of additional mutually acceptable credit
arrangements, which may include the making of advance payments.
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5.0 SERVICES
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5.1 Equipment Warranty and Maintenance Services
5.1.1 During the term of an Equipment warranty or Contract for
Equipment maintenance Services, NCR will maintain the covered
Equipment in accordance with this Section and applicable Policies
so that it complies with the warranties in Section 7.1.b. Unless
otherwise stated, the initial term of a Contract for Equipment
maintenance Services is one year and will automatically renew for
additional one year terms unless you or NCR terminate it. You or
NCR may terminate a Contract for Equipment maintenance Services
at any time by providing 30 days advance written notice. On
termination under this Section 5.1.1, NCR will refund the
unapplied portion of any advance payment.
5.1.2 NCR's Equipment warranty and prepaid or contract
maintenance Services include parts and, if labor is included in
the Service, labor during covered hours. NCR will charge
separately for: (1) Supplies; (2) service calls outside of the
applicable scope of contracted Service or coverage hours; (3)
service calls for Equipment that was in good operating condition
at the time of the call; (4) use of specified types of Equipment
above their rated usage levels (which NCR will provide to you at
your request); and (5) per-call Services covering Products
outside of warranty or not on contract maintenance. NCR will also
charge separately to repair Equipment which has failed due to:
(i) an alteration to Equipment or Software or attachment not
provided by NCR, approved by NCR in writing or compatible with
NCR's standard interfaces; (ii) your use of Supplies or products
acquired from third parties that are defective or that do not
meet NCR standards or specifications; (iii) your or any third
party's negligence, misuse, or abuse; or (iv) fire, smoke, water,
or acts of God. Replaced parts become or remain NCR's property.
5.1.3 You must maintain the Equipment site consistent with NCR
specifications at your expense, and you must provide safe working
conditions and appropriate utility services for maintenance
personnel. When Equipment is under warranty or a Contract for
maintenance Services, or is loaned to you under Section 9.0, you
may not allow anyone other than NCR or an authorized NCR warranty
service provider to maintain it. Before accepting an order for
maintenance Services for Equipment that is not then under
maintenance Services or which anyone other than NCR has installed
or serviced, NCR may inspect and refurbish it at your expense.
Orders for maintenance Services must include all of the same type
of Equipment at a location.
5.1.4 If NCR provides Services for products you acquire from
third parties, NCR will maintain those products in good operating
condition during the term of the Contract for those Services. NCR
will not assume the manufacturer's warranty obligations or make
modifications specified by the manufacturer unless otherwise
agreed in writing.
5.2 Software Services
5.2.1 During the term of a Software warranty or Contract for
Software Services, NCR will perform the following in accordance
with this Agreement and applicable Policies: (1)
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provide telephone access to NCR support resources to assist in
resolving Software problems; and (2) distribute, at your request,
Software updates. NCR will announce the availability of updates
via internet postings or otherwise. Unless otherwise stated, the
initial term of a Contract for Software Services is one year and
will automatically renew for additional one year terms unless you
or NCR terminate it. You or NCR may terminate a Software Services
Contract at any time by providing 30 days advance written notice.
On termination under this Section 5.2.1, NCR will refund the
unapplied portion of any advance payment.
5.2.2 NCR will provide Software Services for the most recent
release and the prior release of covered Software. Software
Services for the prior release may not include updates or code
level fixes. When you order Software Services, you must order the
same level of service (to the extent available) for all
interdependent Software operating on the same Equipment. If you
have licensed multiple copies of the same Software, you must
order Software Services for each copy used at the same location.
5.2.3 To permit NCR to provide Software Services, upon request
you agree to assist in isolating Software problems. You also
agree to provide modems and telephone lines for NCR to access
your system remotely, to install and test all fixes and updates,
and to perform other actions reasonably requested by NCR.
5.3 Professional Services -- When NCR performs Services for you, NCR may provide
you with "Deliverables." Deliverables may include: (1) custom or third party
Software in executable or source code form; and (2) written, visual, or audio
materials such as architectural designs, data models, and training materials in
either written or electronic form; which relate to your information processing
systems. Software Deliverables may be subject to additional terms and conditions
contained in an Addendum.
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6.0 LICENSE TO USE SOFTWARE AND DELIVERABLES
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6.1 Scope -- Subject to your payment of all one-time or periodic license fees,
NCR grants you a non-transferable, non-exclusive license to use Software and
Deliverables under the terms of this Agreement. Unless the Contract or
applicable Policies specify that the license to Software is periodic, your
license is perpetual. If the Contract or applicable Policies do not specify
usage terms such as the number of users or site license rights, you may use
Software at any time on a single processing unit of the class and model for
which you originally licensed it. You may use Software in object code only,
unless you and NCR agree to additional terms regarding the use of source code.
The license term for Software and Deliverables begins on delivery. Your license
to use Software or Deliverables terminates automatically if you violate the
license terms. When a license terminates, you will immediately stop using the
Software or Deliverables and either return or destroy all copies.
6.2 General -- You may not copy Software or Deliverables; transfer, disclose,
sublicense or distribute them to any party; or use them other than as allowed by
this Agreement or a Contract, except that, subject to Section 2.4, (a) you may
transfer Software and Deliverables to your
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affiliates who agree to be bound by
this Agreement, (b) you may give access to the Software and Deliverables to your
consultants who agree to be bound by the license terms of this Section 6.0 and
the Contract, for the sole purpose of performing consulting services for you,
and (c) if you transfer Equipment to a third party, you may transfer Software
running on that Equipment to the third party for that party's internal use only
(and not for resale or redistribution) if you notify NCR and give the other
party a copy of the license terms of the Contract, including this Section 6.0
and all usage limitations. The license transfer will be effective when the third
party accepts the terms by initial use of the Software and pays any applicable
relicense fees. You will retain copyright notices and proprietary legends on all
copies of Software and Deliverables you possess or transfer. Software and
Deliverables remain the property of NCR or its licensors. You will not take any
steps, such as reverse assembly or reverse compilation, to derive a source code
equivalent of Software.
6.3 Diagnostic Software -- NCR may provide Products to you that include
software, data, documentation, and other material that NCR uses to diagnose the
operation of the Products ("Diagnostic Tools"). Diagnostic software may be
firmware or it may be loaded in memory from disks or other media. The Diagnostic
Tools are not licensed for use by any person other than NCR Corporation.
Diagnostic Tools are the confidential intellectual property of NCR and are
provided solely to assist NCR in supporting its Products. They may not be
copied, disclosed to any third party (except under the same terms as under
Section 6.2(c)), or used by any person for any purpose whatsoever without NCR's
express written consent. NCR may delete or remove Diagnostic Tools at any time
without notice. NCR PROVIDES NO WARRANTIES FOR DIAGNOSTIC TOOLS AND IS NOT
LIABLE FOR THEIR USE BY ANY PERSON OTHER THAN NCR.
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7.0 WARRANTIES
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7.1 Equipment, Supplies, Software, and Services - NCR warrants that:
(a) Title in Equipment and Supplies will be free and clear except
for NCR's security interest.
(b) Equipment, Supplies, and Software media will be free from
defects in material and workmanship and will conform to NCR
Product Specifications. Software operation will materially
conform to NCR Product Specifications (except for Software
Deliverables, which are covered in 7.1(c) below).
(c) Deliverables, including Software Deliverables, will
materially conform to the specifications included in the
applicable Addendum.
(d) Equipment and Software listed in the "NCR Year 2000
Qualification List" ("Qualified Products") at the time of
acquisition from NCR will comply with the "NCR Year 2000
Qualification Requirements Definition" in effect at the time of
acquisition. Both the Qualification List and the Qualification
Requirements Definition will be made available to you at your
request. This warranty applies only to the performance of the
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Qualified Products themselves, and does not extend to the use of
Qualified Products in combination with other products, whether
acquired from NCR or not. Notwithstanding Section 7.2, this
warranty is not limited in duration.
(e) It will provide Services in a professional manner consistent
with Section 5.0, any Contract, and applicable Policies in effect
at the time the Services are rendered.
Equipment may include used components, which will not affect the
applicable warranties.
7.2 Warranty Period -- Unless otherwise specified in a Contract or Policies at
the time of delivery, the warranty period for Equipment and Supplies is 90 days,
and for Software and Deliverables is 30 days. The warranty period begins on
delivery of the Product. The warranty for a copy of a piece of Software covers
only that specific copy; software fixes supplied under warranty Services may not
be incorporated into other copies of the same Software which are not then under
warranty or a Contract for Software Services.
7.3 Nonconformance with Warranties -- If Equipment, Software (except Software
Deliverables, which are covered by the next sentence), or Supplies do not
conform to their warranties during the applicable warranty period, NCR will
without charge: (a) under Section 5.1 repair Equipment or replace it with a unit
of Equipment that is at least functionally equivalent; (b) under Section 5.2
correct Software; or (c) replace Supplies. If NCR does not perform Services as
warranted (including by providing Deliverables that do not conform to their
warranties) and you provide prompt notice, NCR will use its best efforts to
reperform them.
7.4 Refunds
7.4.1 If NCR is unable to repair, correct, or replace Equipment,
Software (except Software Deliverables, which are covered by
Section 7.4.2), or Supplies under Section 7.3 within a reasonable
time, you may return the defective Product and obtain a refund,
within 30 days, or you may accept the Product "as is."
7.4.2 If NCR is unable to reperform Services as warranted under
Section 7.3 within a reasonable time (including by correcting any
non-conforming Deliverables), you may terminate the Contract and
obtain a refund of your payments to NCR for those Services and/or
associated Deliverables. Your refund for a fixed term Services
Contract will not exceed your most recent payment for such
Services.
7.4.3 If NCR makes a warranty in a Contract that does not have a
specified remedy for its failure, and a problem arises concerning
that warranty, you will notify NCR promptly in writing, and NCR
will without charge correct the problem. If NCR is unable to
correct the problem within a reasonable time, you may return the
affected Product(s) and obtain a refund.
7.4.4 Any refund under this Section 7.0 will be reduced on the
same basis as you depreciate the Product(s) in your financial
statements, calculated from the delivery date. If you do not
depreciate the Product(s), the refund will be reduced on a 5-year
straight-line basis.
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7.5 Warranty Services -- NCR will provide warranty Services under the applicable
Policies in effect when it delivers the Products. You may separately purchase
expanded warranty Services from NCR, when available.
7.6 EXCEPT FOR WARRANTIES SPECIFICALLY CONTAINED IN THIS AGREEMENT OR A
CONTRACT, NCR DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING. NCR DOES NOT WARRANT THAT
PRODUCTS WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFICIENCIES,
ERRORS, DEFECTS OR NONCONFORMITIES WILL BE CORRECTED. NCR HAS NO WARRANTY
OBLIGATION FOR PRODUCTS THAT YOU ACQUIRE FROM THIRD PARTIES, EVEN IF NCR
ASSISTED IN EVALUATING OR SELECTING THEM. THE FAILURE OF PRODUCTS YOU ACQUIRE
FROM THIRD PARTIES OR THEIR SUPPLIERS WILL NOT AFFECT YOUR OBLIGATIONS TO NCR.
IF NCR DESIGNATES THAT PRODUCTS ARE PROVIDED "AS IS," THERE IS NO WARRANTY.
7.7 Exclusive Remedies -- Your rights and remedies set forth in this Agreement
or a Contract are exclusive and in lieu of all other rights and remedies related
to any Contract or Product (except to the extent that applicable law prohibits
agreements to disclaim warranties or limit liabilities).
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8.0 YOUR OBLIGATIONS
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The successful performance of our Products depends on your knowledgeable
selection and operation of the Products and your reasonable cooperation with
NCR. Your obligations include, unless otherwise agreed:
(a) determining whether the Products, if they perform as
warranted, will meet your specific requirements;
(b) giving NCR sufficient, free, and safe access to your
facilities, free of any hazardous materials (e.g., asbestos)
or conditions;
(c) providing back-up equipment and services to safeguard your
programs, data and funds;
(d) giving NCR reasonable access to your employees, including
clearly identified key contacts;
(e) obtaining the commitment of your management to the success
of the Products and communicating that commitment to all of
your employees;
(f) appropriately educating your employees on the use of the
Products;
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(g) giving NCR information that it requests that is reasonably
relevant to your implementation or operation of the
Products;
(h) obtaining any necessary governmental permits or consents;
(i) implementing and operating the Products;
(j) testing and operating Software and all Software updates; and
(k) documenting Software problems.
If you cause a delay in NCR's performance under a Contract, NCR may charge you a
reasonable amount for accommodating you. This reasonable amount is typically a
standard $150.00 an hour.
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9.0 PRODUCT EVALUATION
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NCR may loan Products to you for your evaluation. You and NCR will agree in
advance on: (1) the length of the evaluation period; (2) prices if you elect to
acquire the Products; (3) the post-evaluation warranty periods, if any; and (4)
who will bear related costs of freight, installation/deinstallation and
maintenance. The evaluation period will begin when NCR delivers the Products to
you. At the end of the evaluation period, you will make the Products available
for return to NCR, or NCR will invoice you for the Products at the agreed
prices. You agree not to move the Products to another location during the
evaluation without NCR's consent. DURING YOUR EVALUATION, PRODUCTS ARE FURNISHED
TO YOU "AS IS." IF YOU ARE DISSATISFIED WITH THEM FOR ANY REASON, YOUR EXCLUSIVE
REMEDY WILL BE NCR'S REMOVAL OF THE PRODUCTS FROM YOUR SITE.
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10.0 DEFENSE OF INFRINGEMENT CLAIMS
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NCR will defend at its expense any claim or suit brought against you alleging
that any Product infringes a patent, copyright or trade secret and will pay all
costs and damages finally awarded, if you promptly notify NCR of the claim and
give NCR (a) the information and cooperation that NCR reasonably asks for, and
(b) sole authority to defend or settle the claim. In handling the claim, NCR
will obtain for you the right to continue using the Product or replace or modify
the Product so that it becomes non-infringing. If NCR is unable to reasonably
secure those remedies, as a last resort NCR will refund the purchase price for
infringing Equipment and refund one-time license fees for infringing Software.
The refund will be reduced on the same basis as you depreciate the infringing
Product in your financial statements. If you do not depreciate it, the refund
will be reduced on a 5-year straight-line basis. NCR is not obligated to
indemnify you under this Section 10.0 if the alleged infringement is based on
the use of the Product with other products not furnished directly by NCR, or on
NCR's compliance with any designs, specifications or instructions provided by
you, or if anyone other than NCR has
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modified the Product. THIS SECTION STATES NCR'S ENTIRE LIABILITY FOR
INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, AND OTHER INTELLECTUAL
PROPERTY RIGHTS.
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11.0 NCR'S LIABILITY
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Circumstances may arise where, because of NCR's default or other liability, you
are entitled to recover damages from NCR. In each such instance, regardless of
the basis on which you become entitled to claim damages, your sole remedy, and
NCR's entire liability (except to the extent that applicable law prohibits
agreements to limit liabilities), is as follows:
11.1 For failure (i) of Equipment, Supplies, and Software (other than Software
Deliverables, which are covered by the next clause) to conform to their
warranties during a warranty period, (ii) to perform Services (including by
providing Deliverables that do not conform to their warranties) as warranted,
and (iii) any warranty as set out in Section 7.4.3, as stated in Section 7.0.
11.2 For delays in delivery, as stated in Section 3.1 or as otherwise provided
in a Contract.
11.3 For your dissatisfaction with Products that NCR loans to you, as stated in
Section 9.0.
11.4 For infringement of patents, copyrights, trade secrets, and other
intellectual property rights, as stated in Section 10.0.
11.5 For bodily injury, including death, caused by NCR's negligence, NCR's
liability will be unlimited, to the extent NCR's negligence caused the injury.
For physical damage to tangible property, NCR will be liable for direct damages
up to $1,000,000 per occurrence, to the extent NCR's negligence caused the
damage.
11.6 FOR ALL CLAIMS NOT EXPRESSLY ADDRESSED IN SECTIONS 11.1 THROUGH 11.5 (OR IF
THE REMEDIES IN THOSE SECTIONS ARE HELD TO HAVE FAILED OF THEIR ESSENTIAL
PURPOSE OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE), INCLUDING BUT NOT
LIMITED TO CLAIMS OF FRAUD OR MISREPRESENTATION ARISING OUT OF OR RELATED IN ANY
MANNER TO THE PERFORMANCE OF ANY OBLIGATIONS UNDER A CONTRACT, NCR'S CUMULATIVE
LIABILITY (INCLUDING REFUNDS AND THE VALUE OF REPLACEMENT PRODUCTS GIVEN TO YOU)
WILL BE LIMITED TO YOUR PROVEN DIRECT DAMAGES NOT TO EXCEED THE AMOUNT YOU PAID
NCR FOR THE APPLICABLE PRODUCT IN CONTROVERSY.
11.7 UNDER NO CIRCUMSTANCES ARE NCR, OR ITS OFFICERS, DIRECTORS, EMPLOYEES,
AFFILIATES, SUBCONTRACTORS, OR SUPPLIERS LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES; OR FOR LOSS OF PROFITS, REVENUE, OR DATA;
WHETHER IN AN ACTION IN CONTRACT, TORT,
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PRODUCT LIABILITY, STATUTE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF
THOSE DAMAGES.
11.8 SECTIONS 11.6 AND 11.7 WILL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED
REMEDY.
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12.0 DISPUTE RESOLUTION
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12.1 Negotiation, Escalation and Mediation -- If any controversy or claim arises
relating to this Agreement or any Contract, you and NCR will attempt in good
faith to negotiate a solution to our differences, including progressively
escalating any controversy or claim through senior levels of management. If
negotiation does not result in a resolution within 15 business days of when one
party first notifies the other of the controversy or claim, you and NCR will
participate in good faith mediation as administered by the American Arbitration
Association.
12.2 Arbitration -- Any controversy or claim between you and NCR, whether based
on contract, tort, statute, or other legal theory (including but not limited to
any claim of infringement, fraud, or misrepresentation) which cannot be resolved
by negotiation or mediation will be resolved by binding arbitration under this
Section 12.2 and the then-current Commercial Rules and supervision of the
American Arbitration Association. The duty to arbitrate will extend to any
employee, officer, shareholder, agent, or affiliate of you or NCR making or
defending a claim which would be subject to arbitration if brought by you or
NCR. If any part of this Section 12.0 is held to be unenforceable, it will be
severed and will not affect either the duty to arbitrate or any other part of
this Section 12.0. The arbitration will be held in the United States
headquarters city of the party not initiating the claim before a sole arbitrator
who is knowledgeable in business information and electronic data processing
systems. The arbitrator's award will be final and binding and may be entered in
any court having jurisdiction. The arbitrator will not have the power to award
punitive or exemplary damages, or any damages excluded by, or in excess of, any
damage limitations expressed in this Agreement or a Contract. Issues of
arbitrability will be determined in accordance solely with the federal
substantive and procedural laws relating to arbitration; in all other respects,
the arbitrator will be obligated to apply and follow the substantive law of the
state of Massachusetts, as provided by Section 13.9.
12.3 Costs -- Each party will bear its own attorney's fees and other costs
associated with the negotiation, mediation, and arbitration provided for by this
Section 12.0, except that costs and expenses of arbitration other than
attorney's fees will be paid as provided by the rules of the American
Arbitration Association. If court proceedings to stay litigation or compel
arbitration are necessary, the party who unsuccessfully opposes such proceedings
will pay all associated costs, expenses and attorney's fees which are reasonably
incurred by the other party.
12.4 Two Year Limitation -- Neither you nor NCR may bring a claim or action
regardless of form, arising out of or related to this Agreement, including any
claim of fraud or misrepresentation, more than two years after the delivery of
any Products at issue, or more than two years after cause of action accrues,
whichever is later.
12
12.5 Confidentiality - In order to facilitate the resolution of controversies or
claims between you and NCR, you and NCR will keep them confidential, including
details regarding negotiations, mediation, arbitration, and settlement terms.
12.6 Substitute Products -- Your acceptance of refunds or substitute Products
under this Agreement waives all claims relating to the nonperforming Products
involved.
- --------------------------------------------------------------------------------
13.0 MISCELLANEOUS TERMS
- --------------------------------------------------------------------------------
13.1 Effective Date; Non-Waiver; Assignment -- The cover page of this Agreement
specifies the effective date. If the date is left blank, the date NCR signs this
Agreement or first provides Products to you is the effective date. Failure to
enforce any term of this Agreement or a Contract is not a waiver of future
enforcement of that or any other term. Neither you nor NCR may assign this
Agreement, a Contract, or its rights or obligations under them without the
express written consent of the other, except NCR may assign this Agreement or a
Contract to an affiliate and may use subcontractors or resellers to fulfill its
obligations.
13.2 Severability -- If any provision of this Agreement or a Contract is held to
be illegal, invalid, or unenforceable, the provision will be enforced to the
maximum extent permissible so as to effect the intent of the parties, and the
remaining provisions of this Agreement or the Contract will remain in full force
and effect.
13.3 Termination -- This Agreement will remain in effect until you or NCR
terminate it on 30 days advance written notice. Termination of this Agreement
will not terminate any existing Contract.
13.4 Insolvency and Bankruptcy -- On the occurrence of any of the following, all
Contracts will automatically terminate unless the non-affected party elects to
have any such contract continue:
(a) the admission by either party in writing of its inability to
pay its debts generally or the making of a general
assignment for the benefit of creditors;
(b) any affirmative act of insolvency by either party or the
filing by or against any party of any petition or action
under any bankruptcy, reorganization, insolvency
arrangement, liquidation, dissolution or moratorium law, or
any other law or laws for the relief of, or relating to,
debtors; or
(c) the subjection of a material part of either party's property
to any levy, seizure, assignment or sale for or by any
creditor, third party or governmental agency.
13.5 Confidentiality; Customer References -- Except as required by law, you and
NCR will keep the terms and conditions of this Agreement and of Contracts,
including pricing, confidential; provided, however, that NCR may without your
consent disclose to third parties
13
that you are a customer of NCR without revealing any specific terms of this
Agreement or any Contract.
13.6 Notices -- All notices (including requests, consents or waivers) made under
this Agreement or any Contract will be in writing and delivered by facsimile,
electronic mail, or other electronic means (in which case the recipient will
provide acknowledgment within one business day separately from any
machine-generated automatic reply); or by prepaid means providing proof of
delivery. Notices are effective upon receipt. NCR will send notices to you at
the address on the face of this Agreement, and you will send notices to NCR at
its local district office or other designated address, with an additional copy
to:
General Counsel/Notices WHQ-5
NCR Corporation
Dayton, OH 45479
Fax: (937) 445-7214
Email: law.notices@daytonOH.ncr.com
Either party may change its address upon notice as required by this Section.
13.7 Geographic Scope -- This Agreement applies only to the United States; NCR
will not provide Products, including warranty or maintenance Services, outside
the United States. You may not export Products without appropriate approvals
from the United States and foreign government.
13.8 Force Majeure -- Neither party is liable for failing to fulfill its
obligations due to acts of God, civil or military authority, war, riots,
strikes, fire, or other causes beyond its reasonable control, except for your
obligation to make payments.
13.9 Choice of Law -- New York law governs this Agreement, except for its laws
regarding choice of law and as stated in Section 12.2; the United Nations
Convention on Contracts for the International Sales of Goods does not apply.
THIS AGREEMENT TOGETHER WITH ANY CONTRACTS SETS OUT THE ENTIRE AGREEMENT WITH
RESPECT TO YOUR ACQUISITION OF PRODUCTS FROM NCR. YOU ACKNOWLEDGE THAT YOU HAVE
READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT.
14
Executed on your behalf by: NCR CORPORATION
/s/ David L. Grey /s/ George O. Tucker
- -------------------- --------------------
Authorized Signature Authorized Signature
David L. Grey George O. Tucker
Printed Name Printed Name
July 17, 2001 August 31,2001
Date Date
15
NCR CORPORATION [GRAPHIC - NCR LOGO]
ORDER FOR PROCESSING SERVICES NCR Customer Information Services
- --------------------------------------------------------------------------------
Customer Name
Ipswich Savings Bank
- --------------------------------------------------------------------------------
Street Address
23 Market Street
- --------------------------------------------------------------------------------
City, State and Zip Code
Ipswich, MA 01938
- --------------------------------------------------------------------------------
Customer Number Initial Term Contract Order Number
10180389 36 months
- --------------------------------------------------------------------------------
YOU AGREE TO PURCHASE OR LICENSE AND NCR CUSTOMER INFORMATION SERVICES (CIS), ON
ACCEPTANCE, AGREES TO FURNISH THE APPLICATIONS LISTED BELOW FOR THE TERM
INDICATED AND THE PRICES SPECIFIED ON THIS ORDER.
Term - The term for each processing application will commence upon the first
processing of such application by NCR for you and will continue for the period
specified. The term for any periodic Software license granted will commence upon
delivery of the Software to you and will continue for the period specified.
Estimated processing start dates and delivery dates are subject to change.
Thereafter, the term for each such processing application and each Software
license will renew automatically for a like period unless written notice of
termination for each processing application and Software license is given.
Notice of termination must be given not less than one hundred eighty (180) days
prior to the scheduled end date of the initial term or renewal term when the
termination will become effective.
Charges - Customer shall pay for Processing Services and Software in accordance
with the rates and terms specified in this Order.
- ------------------------ -------------- ---------------------- -------------
APPLICATION APPLICATION BILLING REFERENCE ESTIMATED
NAME CODE NUMBER NUMBER START DATE
- ------------------------ -------------- ---------------------- -------------
SAVINGS ACCOUNTS 5320
- ------------------------ -------------- ---------------------- -------------
CERTIFICATES > 180 DAYS 5320
- ------------------------ -------------- ---------------------- -------------
CERTIFICATES 30-180 DAYS 5320
- ------------------------ -------------- ---------------------- -------------
CERTIFICATES < 30 DAYS 5320
- ------------------------ -------------- ---------------------- -------------
NOW/DDA ACCOUNTS 5320
- ------------------------ -------------- ---------------------- -------------
LOANS 5339
- ------------------------ -------------- ---------------------- -------------
LASER PRINTED BILL 3654
- ------------------------ -------------- ---------------------- -------------
LASER PRINTED STATEMENTS 3654
- ------------------------ -------------- ---------------------- -------------
LASER PRINTED DEL NOTES 3654
- ------------------------ -------------- ---------------------- -------------
- ------------------------ -------------- ---------------------- -------------
1
Ordered NCR Product and Services are subject to the Addendum, dated
________________, 200___, between You and NCR.
- ------------------------------------ ------------------------------------------
Executed by (Type or Print Name and NCR Customer Information Services
Title)
- ------------------------------------ ------------------------------------------
Authorized Signature Authorized Signature Date
Date
- ------------------------------------ ------------------------------------------
2
NCR CORPORATION [GRAPHIC - NCR LOGO]
ORDER FOR PROCESSING SERVICES NCR Customer Information Services
Page 2
- --------------------------------------------------------------------------------
Hours of On-line Operations
Standard hours of on-line system operation and availability are:
__8____ a.m. to ___8____ p.m. (_et__) Monday through Thursday
__8____ a.m. to ___8____ p.m. (_et__) Friday
__8____ a.m. to ___4____ p.m. (_et__) Saturday
__8____ a.m. to ___1____ p.m. (_et__) Sunday
Additional hours of system operations and availability may be assessed an extra
charge.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Data Input and Transmission
For Account Processing, you will deliver or complete transmission of input data
to NCR no later than ____7_____ p.m. (et___) Monday through Friday,
and ___1____ p.m. (_et__) Saturday.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Processing and Delivery
NCR will use reasonable efforts to complete the processing of your input
transactions and have completed work available for on-line access by you by
__8_____ a.m. (_et__) of your next business day.
NCR will use reasonable efforts to make available regularly scheduled weekly and
monthly reports within __48___ hours of the actual close of the period.
Reports to be provided are: Frequency:
____see attached_______________________ _____________
_______________________________________ _____________
_______________________________________ _____________
_______________________________________ _____________
_______________________________________ _____________
_______________________________________ _____________
_______________________________________ _____________
NCR will use reasonable efforts to make available regularly scheduled daily
reports by __8____ a.m. (_et__) of your next on-line day.
Reports to be provided are:
______see attached_________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
NCR will use reasonable efforts to make available completed statements within
_48__ hours of the end of the actual statement period.
- --------------------------------------------------------------------------------
3
NCR CORPORATION [GRAPHIC - NCR LOGO]
ORDER FOR PROCESSING SERVICES NCR Customer Information Services
Page 3
- --------------------------------------------------------------------------------
From time to time, NCR upgrades its offerings to bring improved solutions to its
customers. During the Order term, NCR may, upon six (6) months advance written
notice, replace the specific application it currently uses to provide Processing
Services to you with an alternative application. If NCR replaces the processing
application, NCR will use commercially reasonable efforts to minimize the
disruption to your daily operations and will provide reasonable assistance (e.g,
development and implementation of a project plan and appropriate training for
your trainers) to facilitate this conversion. Within thirty (30) days of your
receipt of NCR's notice of any such change, you agree to either (a) notify NCR
in writing of your acceptance of the conversion date provided by NCR, or (b)
notify NCR in writing of your intent to perform an evaluation of the replacement
application to confirm that the replacement application provides substantially
similar functionality as the application you currently utilize. If (1) you do
not complete the evaluation within sixty (60) days of receipt of NCR's
conversion notice, or (2) after performing such evaluation, you reasonably
determine that the replacement application has substantially similar
functionality as the application you currently utilize, you will notify NCR in
writing of your agreement to complete the conversion as specified in NCR's
conversion notice to you. If (a) you notify NCR within the sixty (60) day
evaluation period that the replacement application does not contain
substantially similar functionality as the application you currently utilize,
and (b) any documented missing functionality is not identified (by the NCR user
group) in a request for features to be included in a future release of the
application for implementation prior to any proposed conversion date, you may
terminate this Order at your convenience prior to the end of the Term without
payment of early termination charges, provided however, you will pay NCR
deconversion charges as indicated on the deconversion pricing schedule provided
to you at that time. In the event of your request to terminate, NCR may require
you to convert to an alternative service within six (6) months of NCR's notice.
- --------------------------------------------------------------------------------
Any Services or Products not listed on this Order but requested by you will be
provided at NCR's then-current prices.
- -------------------- ---------------------------------- ---------- ------ ----- --------------
APPL./ITEM PRODUCT DESCRIPTION QTY. PRICE PER MIN/MAX
CODE NO.
- -------------------- ---------------------------------- ---------- ------ ----- --------------
5320 SAVINGS ACCOUNTS CURRENT .44 ACCT MONTHLY
- -------------------- ---------------------------------- ---------- ------ ----- --------------
5320 CERTIFICATES > 180 DAYS CURRENT .44 ACCT MONTHLY
- -------------------- ---------------------------------- ---------- ------ ----- --------------
5320 CERTIFICATES 30-180 DAYS CURRENT .44 ACCT MONTHLY
- -------------------- ---------------------------------- ---------- ------ ----- --------------
5320 CERTIFICATES < 30 DAYS CURRENT .44 ACCT MONTHLY
- -------------------- ---------------------------------- ---------- ------ ----- --------------
5320 NOW/DDA ACCOUNTS CURRENT .44 ACCT MONTHLY
- -------------------- ---------------------------------- ---------- ------ ----- --------------
5339 LOANS CURRENT .44 ACCT MONTHLY
- -------------------- ---------------------------------- ---------- ------ ----- --------------
3654 LASER PRINTED BILL CURRENT .09 PAGE PAGE
- -------------------- ---------------------------------- ---------- ------ ----- --------------
3654 LASER PRINTED STATEMENTS CURRENT .085 PAGE PAGE
- -------------------- ---------------------------------- ---------- ------ ----- --------------
3654 LASER PRINTED DEL NOTES CURRENT .09 PAGE PAGE
- -------------------- ---------------------------------- ---------- ------ ----- --------------
4
NOTES:
1. Term of this agreement is effective with the April 2001 invoice (which
covers March activity).
2. If at any time during the current term of this contract, NCR announces that
STARCOM will no longer be supported, Ipswich Bank can terminate this
contract, without early termination charges, with 180 day written
notification.
3. If NCR does not perform Services as warranted to your satisfaction during
months 25 through 30 of this 36 month Order, and you provide NCR with
prompt written notice, NCR will use its best efforts to remedy the
nonconforming Service. If NCR is unable to cure the non-forming Service
within 60 days from notice, you may provide NCR written notification of
your intent to terminate this Order, without early termination charges.
4. NCR's charges for contract termination can be found on the attached
Schedule 2. These charges supersede the early termination fees listed in
the Processing Services Addendum, if any.
5. Ipswich Savings Bank may provide written intent to convert to the STARCOM
replacement system at any time during the term of this Order.
6. The following offer under this Section 5 is valid through December 14, 2001
only. If Ipswich Savings Bank signs an order for Profile by December 14,
2001, NCR will charge the bank the following for the conversion & education
to the Profile system:
o Based upon current volumes (April 2001) the bank will pay $29,500.00
(half of the calculated $59,000.00, which represents $14,000.00 for
training/education and $45,000.00 for the actual account conversion).
o This $29,500.00 includes the conversion of 45,000 accounts (currently
bank has 38,648 open accounts). Any additional accounts over 45,000
will be charged .50 cents over and above the $29,500.00. This is to
allow for potential account growth and potential account acquisition.
5
SCHEDULE 1
REPORTS AND SERVICES
The STARCOM Financial System includes all standard reports listed below. The
reports listed below are representative; their titles, contents and frequency
are subject to change without notice.
I. STARCOM Financial Deposit Account System Reports
A. Daily Report Preparation
1. Teller Terminal Proof
2. Daily Transaction Summary Report
3. Savings Transaction Journal
4. Savings Exception Activity Journal
5. NOW/DDA Account:
a. Non-Sufficient and Uncollected Funds Report
b. Waived Service Charge Journal
c. Kiting Suspect Report
d. Stop Payment Suspect Report
e. Overdraft Journal
f. Returned Items Report
g. Non-Sufficient Funds (NSF) Notices
h. Uncollected Funds Notices
6. Savings Trial Balance (Totals Only)
7. Savings Daily Maintenance Journal
8. CIF N & A Search Key Update
9. Direct Deposit Validation Report
10. NOW Inclearing Validation Report
11. ATM Transaction Validation
12. Savings Exception Recap Report
13. Savings Variable Rate Earnings Report
14. Certificate Maturity Update Journal
15. Permanent Withdrawal Order (PWO) and Income Processing
Update Journal
16. Autotrans Reconciliation Report
17. Summary of Month-to-Date Savings Account Activity
18. Misc. Receipts and Checks Issued Register
19. Misc. Receipts and Checks Issued Summary
B. Weekly Report Preparation
1. Savings Overdraft Trial Balance
2. Savings Trial Balance (Fiche Only)
6
I. STARCOM Financial Deposit Account System Reports (cont'd)
C. Monthly Report Preparation
1. Savings Trial Balance (Detail) (Fiche Only)
2. Certificate of Deposit Recap
3. Dormant and Inactive Report
4. New Account Listing
5. Closed Account Listing
6. Certificate of Deposit - Maturity Summary
7. Combined Statements Register
8. Retirement Account Billing Report
9. Retirement Account Trial Balance
10. Pension Fund Statements Register
11. STARS Overage Report/Notices
12. Investment Changes Report
13. Matured Investment Report
14. Accounts Eligible for Distribution
15. Accounts Requiring Distribution
16. Accounts Over Reinvestment Level
17. Age Summary Report
18. Distribution Summary
D. Periodic Report Preparation
1. Anticipated Earnings Recalculation Journal
2. Pre-Check Exception Report
3. Savings History Print
4. Savings Account Type Table Update Report
5. Stop Payment Expiration Report
6. Savings Masterfile Print
7. Parameter Update Journal
8. Check Register
9. Earnings Crediting Exception Report
10. Earnings Transfer Journal
11. Earnings Distribution Journal and Trial Balance (Fiche Only)
E. Annual Report Preparation
1. Purged Accounts Listing
2. Earnings Paid YTD Reported to IRS
3. Federal Forms Exception Report
4. STARS Shortage Report/Notices
5. All Federal Forms (see Schedule 2 for pricing)
7
II. STARCOM Financial Loan Account System Reports
A. Daily Report Preparation
1. Collateral Loan Transaction Journal
2. Exception Loan Transaction Journal
3. Consumer Loan Transaction Journal
4. Commercial Loan Transaction Journal
5. Loan Transaction Journal
6. Mortgage Loan Active-Delinquent Journal
7. Mortgage Loan Transaction Journal
8. Loan SATT Index Rate Update
9. Loan Maintenance Journal
10. Input Loan Summary Trial Balance
11. Accrual Loan Trial Balance
12. Collection Loan Disbursement Report
13. Loan Trial Balance (Summary)
14. Summary of Month-to-Date Loan
15. Commercial Loan Delinquency Report
16. Commercial Loan New Account Report
17. Commercial Loan Paid-Off Account Report
18. Commercial Loan Line of Credit Report
19. Commercial Loan Collateral Control Report
20. Commercial Loan Maintenance Journal
21. Commercial Loan Review Report
22. Commercial Loan Trial Balance
23. Consumer Loan Exception Journal
24. Single Payment Loan Maturity Report
25. Single Payment Loan Renewal
26. New Consumer Loan Report
27. New Consumer Loan Report
28. Paid Off Consumer Loan Report
29. Subsidiary Journal Participation Loans
30. Subsidiary Journal Update Report
31. Construction Loan Update Report
32. Lot Status Report
8
II. STARCOM Financial Loan Account System Reports (cont'd)
B. Monthly Report Preparation
1. New Installation Loans Report
2. New Mortgage - Collateral Loans Report
3. Loans in Foreclosure Report
4. Paid Off Mortgage - Collateral Loans Report
5. Loan Trial Balance (Detail)
6. Accrued/Prepaid Journal
7. Delinquency Summary
8. Pledged Loan Report
9. Pledged Savings on Loan Accounts
10. Analysis of Loans by Asset Limitation Code
11. Analysis of Loans by FSLIC Location Code
12. Analysis of Loans by Interest Rate
13. Analysis of Loans by Location Code
14. Analysis of Loans by Purpose Code
15. Collateral Loan Report
16. Deferred Income and Expense Trailer Print
17. Deferred Expense Journal
18. Deferred Income Journal
19. Schedule RC-J Report
20. Section H Report
21. Maturity Projection Report
22. Commercial Delinquency Summary
23. Commercial Loan Inactive Account Report
24. Consumer Loan Delinquency Summary
25. (Mortgage) Loan Activity Report FNMA LASER
26. (Mortgage) Loan Activity Summary FNMA LASER
27. Monthly Payment/Note Rate Change FNMA LASER
28. Trial Balance FNMA LASER
29. FNMA 2010 Monthly Accounting Report
30. FNMA 2020 Liquidation Schedule
31. FNMA 2030 Monthly Summary Report
32. GNMA 1710A Issuer's Monthly Accounting Report
33. GNMA 1710E Liquidation Schedule
34. GNMA 1710D Issuer's Monthly Summary Report
35. MBS "Other" Detail Report
36. Cash Receipts Serviced Loans
37. Delinquent Serviced Loans
38. New/Closed Accounts Serviced Loans
39. Next Month Prepaid Serviced Loans
40. Prepaid Receipts Serviced Loans
9
II. STARCOM Financial Loan Account System Reports (cont'd)
B. Monthly Report Preparation (cont'd)
41. Trial Balance Serviced Loans
42. Remittance Reconciliation
43. Participation Report Summary
44. 308 Group Report (FHLMC MIDANET)
C. Periodic Report Preparation
1. Loan Masterfile Print
2. Commercial Loan Masterfile Print
3. Late Charge Journal
4. Delinquency Report
5. Slow Loan Report
6. Delinquency Report by Investor
7. Delinquency Summary by Investor
8. Consumer Loan Delinquency Report
9. Commercial Delinquency by Investor
10. Commercial Delinquency Summary by Investor
11. Consumer Delinquency by Investor
12. Consumer Delinquency Summary by Investor
13. Adjustable Mortgage Loan - Notice Options
14. Alternative Mortgage Instrument Analysis Report
15. Single Payment Loan Maturity Notice
16. Collection Card
17. Paid Off Loan Card
18. FNMA Special Trial Balance
19. Line of Credit Earnings Report
20. Line of Credit Trial Balance
21. Commercial Loan Compensating Balance Report
22. FHA Case Number Listing
23. IRS Report
24. Loan Disclosure Statement
25. Escrow Disbursements Due
26. Insurance Disbursements Due
27. MIP Disbursement Due
28. Taxes Due Report
29. Loan History Print
30. Purged Account Report
31. Pending Payoff Report
32. Loan Portfolio
33. Recycle/Assumption Report
34. Dealer Floorplan Update Report
10
II. STARCOM Financial Loan Account System Reports (cont'd)
C. Periodic Report Preparation (cont'd)
35. Dealer Floorplan Collateral Report
36. Dealer Floorplan Report by Collateral Report
37. Dealer Trial Balance
38. Dealer Statistical Loan Volume
39. Dealer Floorplan Purged Collateral Report
40. Dealer Floorplan Report
41. Dealer Floorplan Inventory Report
42. Dealer Funds Report
43. Construction Loan Update Report
44. Construction Loan Builder Summary
45. Construction Loan Bill
46. Construction Loan Billing Summary
47. Construction Loan Summary Report
48. Construction Loan Master File Print
49. Loan Standard Account Type Table
50. Participation Report
51. Loan Totals Only Trial Balance
52. FHLMC Form 11 Detail
53. FHLMC Form 13SF Detail
54. FHLMC Form 381 Detail
55. FHLMC Delivery Detail Report
56. FHLMC Delivery Exception Report
57. FNMA Loan Schedule 1068
58. FNMA Loan Schedule 1069
59. FNMA Delivery Exception Report
60. Loan Masterfile Processing Report
11
III. STARCOM Financial General Ledger System Reports
A. Daily Report Preparation
1. Transaction Entry Run Report: Input Source Totals
2. Daily Trial Balance and Posting Run: Detail and Summary
3. G/l Cycle Update Report
4. Trial Balance by Account
5. Trial Balance by Master Record
6. Master File Maintenance Report
B. Monthly Report Preparation
1. Monthly Statement of Operations (Income and Expense)
2. Custom Statement of Conditions
3. Custom Statement of Operations
4. G/L Data Extract for Financial Information Plus
C. Periodic Report Preparation
1. Snapshot Report
2. Budget Report
3. Standing Journal Entry Snapshot Print Report
4. Account/Department Cross Reference Report
1. Chart of Accounts
END OF SCHEDULE 1
12
SCHEDULE 2
Except as otherwise provided for in this Order, in the event that Ipswich Bank
terminates the Order prior to the end of the term for convenience, whether prior
to or after certification, NCR shall be entitled to retain any deposit
previously paid by and/or due from Ipswich Bank, any charges due for the initial
conversion and masterfile set up, and in lieu of other damages actually
incurred, the early termination charges listed below:
Termination
During Months
- -------------
o Month 1 - 12 Eight times the average monthly billing*
For the most recent three month period,
or eith times the proposed monthly
billing*, whichever is greater.
o Month 13 - 24 Six times the average monthly billing* for
the most recent three month period.
o Month 25 - 36 Four times the average monthly billing*
for the most recent three month billing.
*Monthly billing - as described above refers to Monthly Base charges and Data
Communication charges only.
This schedule supersedes the early termination fees listed in the Processing
Services Addendum, if any.
13
NCR CORPORATION [GRAPHIC - NCR LOGO]
PROCESSING SERVICES ADDENDUM
Ipswich Savings Bank
This Processing Services Addendum between __Ipswich Savings Bank__ ("You") and
NCR Corporation ("NCR") is agreed to on __________, 200___ (the "Effective
Date").
Signed:
You NCR Corporation
- ------------------------------------- ----------------------------------
1.0 THIS ADDENDUM
-------------
1.1 Our Contract with respect to Processing Services you acquire consists of the
Master Agreement dated __________, 200___ ("Master Agreement"), this Addendum,
the Order and any Schedules and Appendices attached to the Order, collectively
referred to as the "Addendum". We may enter into more than one Order if multiple
services are ordered by you from NCR. Unless otherwise agreed in writing, all
Processing Services will be governed by the Addendum.
1.2 If a conflict exists between the terms and conditions of any of the
documents referenced above, the order of precedence will be: (a) the Order and
its Schedules and Appendices; (b) this Addendum; and (c) the Master Agreement.
Any pre-printed language on your forms shall not apply.
1.3 AN ORDER MAY CONTAIN TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO
WARRANTY AND LIABILITY PROVISIONS, WHICH REPLACE OR ADD TO THE TERMS AND
CONDITIONS OF THIS ADDENDUM OR THE MASTER AGREEMENT. IF THE TERMS OF THIS
ADDENDUM AND AN ORDER CONFLICT, THE ORDER WILL PREVAIL.
2.0 EFFECTIVE DATE
--------------
2.1 This Addendum specifies the Effective Date above. If the date is left blank,
the date NCR signs this Addendum or first provides Products to you is the
Effective Date. Termination of this Addendum or the Master Agreement will not
terminate any Order.
2.2 Each Order will specify an Effective Date for that Order and a term length,
if applicable. The Order will automatically renew for a term of equal length to
the Initial Term until terminated
1
by either party by written notice to the other
no less than 180 days prior to the end of any Term, unless an Order is
terminated according to Section 11.0 of this Addendum.
3.0 DEFINITIONS
-----------
3.1 As used in this Addendum, the following terms will have the following
meanings. Capitalized terms not defined in this Addendum will have the meanings
assigned in the Master Agreement.
(a) "Order" means the Order for Products which defines the equipment, software,
or services which you are acquiring from NCR, and any Schedules or Appendices
attached to that Order.
(b) "Processing Services" means services performed by NCR in the handling and
processing of your data.
(c) "Processing Center" means the NCR location which processes your data.
Processing may occur in 1 or more Processing Centers.
3.2 Reference to the conduct of a party includes the conduct of employees,
subcontractors or agents of that party. NCR may provide Services either directly
or through subcontractors.
4.0 SCOPE
-----
4.1 NCR will provide the Processing Services ordered by you in accordance with
this Addendum and your Order. When performing the Processing Services, NCR will
use reasonable care in the handling of your input media and data. NCR will, to
the extent commercially reasonable, correct any errors or damage to your input
media or data caused by NCR's fault or negligence at its expense.
4.2 Processing Services will have processing priority over other services at the
Processing Center. In the event processing cannot continue on-site, Processing
Services will receive processing priority over other services at the back-up
processing site.
5.0 NCR'S RESPONSIBILITIES
----------------------
5.1 NCR will process your input data during NCR's regularly scheduled nightly
processing hours. If you or your agent provides data input to the Processing
Center after the designated hours, NCR will endeavor to reschedule the
processing of the late data input prior to the next on-line day or Clearing
Agent deadline. If late data input cannot be processed prior to the next on-line
day or Clearing Agent deadline, NCR will process your late data input as soon as
reasonably possible without interrupting previously scheduled processing
activity.
5.2 NCR will provide reasonable assistance to you to satisfy Federal and State
regulatory agencies requests for information. NCR maintains insurance coverage
which provides adequate protection for its business needs.
2
5.3 NCR's Processing Centers have a disaster recovery plan in place which
outlines procedures that will be followed in the event. NCR's disaster recovery
plan for all Processing Centers is reviewed on a regular basis. The
communications portion of the disaster recovery plan is tested every year on a
rotating basis. Upon your written request, NCR will provide you with a copy of
its disaster recovery contingency test for Processing Center(s) provided
Services to you.
5.4 NCR will provide you with the information you may need to develop a disaster
contingency plan which will work with NCR's plan.
5.5 NCR will use reasonable efforts to promptly incorporate published regulatory
updates and changes that affect Processing Services.
5.6 NCR will notify you reasonably in advance of any system changes which impact
the Processing Services you receive from NCR, and will provide sufficient
information to assist you with any changes you may need to make, if any, in
order to continue to receive the Processing Services.
5.7 NCR will retain your daily files for 30 business days, in addition NCR will
retain your monthly files for 90 days, and your quarterly files for 1 year (or
other period as may be required by regulation or law) after they are used for
processing. Upon your written request and payment of applicable charges, if any,
NCR will provide you with your master file data and all current account
information maintained by NCR. NCR will retain records, etc., as NCR is required
to by Federal and State regulatory requirements.
6.0 YOUR RESPONSIBILITIES
---------------------
6.1 You agree to maintain records, source and backup data:
1) for file and input data recreation, if necessary; and
2) as required by Federal and State regulatory requirements.
6.2 You agree to obtain and maintain:
1) insurance coverage against loss of data as well as other steps required
by law or regulation; and
2) fidelity coverage to protect you from wrongful or dishonest acts
committed by your employees, agents or subcontractors.
6.3 You agree to assume all expenses related to the delivery or transmission of
input data to the Processing Center and the return delivery or transmission of
data and reports. Input media must be in good condition and the data format must
conform to NCR's specifications in order to avoid delays in processing. If input
data is to be received from multiple locations, NCR will commence processing
after all data is received at the Processing Center unless processing can begin
prior to receiving all data.
6.4 You are responsible for implementation and operation of your accounting,
management, and reporting systems, audit functions, and recovery routines. You
are also responsible for the
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operation and maintenance of your on-site computer systems and data
communications equipment.
6.5 If system parameters for Processing Services are to be changed or portions
of files are to be deleted, the Processing Center must be notified in writing at
least 30 days in advance so that your change can be accommodated.
6.6 Corrections needed to Processing Services due to your submission of (i)
unusable input data, (ii) data not in the proper format, or (iii) data not
balanced properly, will be processed as soon as reasonably possible without
interrupting previously scheduled processing activity. Additional processing
time or other assistance required for these corrections may be charged to you at
NCR's then-current rates.
6.7 You agree to check, balance and reconcile each report generated by NCR upon
receipt. You agree to notify NCR in writing within 2 business days of receipt of
the report of any discrepancies. Any claim by you for a discrepancy that NCR
does not receive within this 2 business day period shall be forever barred.
Should you discover a discrepancy after this time period, NCR will use its
reasonable efforts to correct the discrepancy at its earliest convenience.
However, given the difficulty of reprocessing beyond this 2 business day period,
NCR may charge you at its then-current rates for the correction of this
discrepancy.
7.0 REGULATORY AGENCIES AND OTHER LEGAL REQUIREMENTS
------------------------------------------------
7.1 The data, records and reports to be generated, received or maintained by NCR
pursuant an Addendum may be subject to examination by Federal and State
regulatory agencies that have jurisdiction over your business, to the same
extent as such records would be subject if they were maintained and produced
directly by yourself. Any expenses incurred by NCR associated with these audits
may be billed to you (and other customers, as appropriate) at NCR's then-current
rates.
7.2 You are responsible for notifying the appropriate Federal and State
regulatory agencies of all information required concerning Processing Services
including, but not limited to, the commencement and termination of Processing
Services, and methods and control procedures used in processing your data.
7.3 During the term of an Addendum, the federal regulatory agency which governs
your business will have the authority and responsibility to review and govern
NCR and the Processing Services. NCR will provide the appropriate regulatory
agency's District Director with a copy of the current third party review report
when a review by any regulatory agency is performed. NCR will provide the
regulatory agencies with a copy of NCR's current audited financial statements.
7.4 You or your authorized agent may audit your records at a mutually
agreed-upon time. You agree to pay any reasonable expenses incurred by NCR in
connection with any such audit.
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8.0 INVOICING
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8.1 NCR will invoice you on a recurring basis for Processing Services. Other
Products will be invoiced upon delivery. Invoices are due and payable upon
receipt unless otherwise specified on the Order.
8.2 If Processing Services are suspended or terminated for failure to pay an
undisputed invoice, you will be liable for reinstatement charges.
9.0 WARRANTIES
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9.1 THE PROVISIONS OF THIS SECTION 9.0 GOVERN NCR'S WARRANTY OBLIGATIONS FOR
PROCESSING SERVICES AND, WITH RESPECT TO PROCESSING SERVICES, SUPERSEDE ANY
INCONSISTENT PROVISION IN THE MASTER AGREEMENT.
9.2 NCR warrants that it will perform its obligations under this Addendum in a
professional and workmanlike manner.
9.3 NCR'S LIABILITY AND YOUR SOLE REMEDY IN THE EVENT OF LOSS OF MEDIA OR DATA,
DAMAGE OR CONTAMINATION TO EITHER DATA OR MEDIA, OR ERRONEOUS PROCESSING, WILL
BE LIMITED TO REPLACEMENT OF THE MEDIA ON WHICH THE DATA IS STORED, AND TO THE
EXTENT COMMERCIALLY REASONABLE, CORRECTION OF ERRORS IN PROCESSING. YOU AGREE TO
ALWAYS MAINTAIN BACKUP DATA AS PROTECTION AGAINST SUCH LOSS, DAMAGE OR
CONTAMINATION.
9.4 NCR WILL NOT BE RESPONSIBLE FOR ERRORS OR DELAYS RESULTING FROM THE FAULTY
TRANSMISSION OF DATA FROM YOU, OR FOR DELAYS IN PROCESSING OR IN THE DELIVERY OF
THE PROCESSED DATA IN ANY FORM DUE TO CAUSES BEYOND ITS CONTROL.
9.5 Upon your written request, NCR will procure for your telecommunication
and/or data communication products and services from a provider ("Provider") of
such products and services.
NCR IS NOT RESPONSIBLE FOR AND DOES NOT WARRANT THE PERFORMANCE OF ANY PROVIDER
OR ITS SERVICES, AND YOU AGREE THAT NCR HAS NO LIABILITY TO YOU FOR SUCH
PERFORMANCE OR SERVICES.
You agree to bound by the terms of (i) any agreement between NCR and the
Provider for services rendered to or for you by the Provider, and (ii) any
applicable tariff, which terms related to warranties, limitation of such
Provider's liabilities, and the availability of remedies. If you file a claim
against the Provider and obtain a judgment against it, or settle a controversy
with the Provider, you agree that you will not be entitled to any remedies from
NCR that are in addition to or in lieu of any remedies received from or
settlements agreed to with the Provider.
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9.6 Your rights and remedies set forth in this Addendum are exclusive and in
lieu of all other rights and remedies related to any Order or Product.
10.0 CONFIDENTIALITY
---------------
10.1 "Confidential Information" means all data, reports, Software,
specifications and information transmitted or received by either party during
the term of an Order: (i) in documents or other tangible materials clearly
marked CONFIDENTIAL or the like; (ii) data and reports which contain your input
data; or (iii) orally or in any other intangible form, if at the time of
disclosure the disclosing party tells the receiving party that the information
is confidential, and within ten (10) days after that first disclosure, the
disclosing party delivers to the receiving party documents or other tangible
materials clearly marked CONFIDENTIAL or the like which discloses or describes
that information.
Confidential Information does not include information which: (a)
is or becomes publicly known or readily ascertainable by the public through no
wrongful act of the receiving party; (b) is independently developed by or for
the receiving party; (c) the receiving party receives from a third party, if the
receiving party does not know of any restrictions on the disclosure of that
information; or (d) the disclosing party discloses to a third party without
similar restrictions on disclosure.
10.2 During the term of an Order and for a period of two (2) years from the
termination or non-renewal of an Order, each party will use reasonable efforts
to prevent the disclosure of Confidential Information to any other person,
unless disclosure is required by law. All materials containing Confidential
Information delivered by a party under this Addendum are and will remain the
disclosing party's property; at the disclosing party's written request, the
receiving party must promptly return to the disclosing party all Confidential
Information, except a single archival copy.
11.0 TERMINATION
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11.1 Either party may terminate this Addendum if:
1) A party files a petition of bankruptcy or receivership, or
makes an assignment for the benefit of creditors, or should a
received be appointed or applied for; or
2) A party is unable to
cure a default of any of its obligations hereunder within 30 days
of written notice being received by the defaulting party.
If NCR is unable to cure a default, pursuant to this Paragraph 11.1, you may
terminate an Order without obligation to NCR for early termination charges as
defined below. You will be responsible to pay all other invoices, charges, etc.,
outstanding as of the termination date.
11.2 You may terminate for convenience an Order, in whole or in part, prior to
the end of any term. In the event of an early termination, you agree to pay NCR
a termination charge in accordance with NCR's then-current termination charges,
unless otherwise specified on your Order, and repayment of any discounts granted
to you during the term. If you terminate an Order for Processing Services in
part and NCR is unable to reasonably continue to provide Processing
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Services due to your partial termination, NCR reserves the right to terminate
the Order in whole and you agree to pay early termination charges and repayment
of discounts granted on the entire Order being terminated early. Upon receipt of
your early termination notice, NCR will retain any deposit previously paid by
and/or due from you, any discounts extended to you will no longer be granted
through the remainder of the Order's term, and NCR will be paid in full by you
for any other charges due to NCR as of the effective date of termination.
11.3 You may terminate an Order at the end of any term by providing NCR with
written notice 180 days prior to the end of such term. You will not incur
termination charges if the provisions of this paragraph 11.3 are met.
11.4 Upon receiving your notice of intent to terminate and upon placement of an
Order for deconversion services, NCR will, when requested and when all invoices
due have been paid, provide you with your account information contained in NCR's
current files. This information will be provided in the standard machine format
on media used by NCR at the time. All costs for programming, materials, computer
time, project management, etc., will be paid by you in accordance with NCR's
then-current price schedule.
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